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158 U.S. 186

15 S.Ct. 804

39 L.Ed. 943

THE OREGON.1

 Nos. 270 and 273.

 May 6, 1895.

The suit was originally instituted December 31, 1889, by the filing of a

libel in admiralty by John Simpson, master of the British ship Clan

Mackenzie, against the steamer Oregon, to recover damages for a collision between the two vessels, which occurred December 27th, in the Columbia

river, about a mile above a point in the river known as 'Coffin Rock 

Light,' and resulted in the sinking of the Clan Mackenzie, and the loss of 

two of her crew. The libel charged the Oregon with fault in not having a

 proper lookout or a competent pilot, and in failing to keep out of the way

of the Clan Mackenzie, which was then at anchor.

Upon the Oregon being arrested, a claim to her was interposed by theOregon short Line & Utah Northern Railway Company, and a stipulation

given in the sum of $260,000 to answer the libel. Subsequently,

intervening petitions were filed by James Laidlaw, administrator of the

estates of the two seamen of the ship who were killed in the collision, by

John Simpson and his wife individually, and by 18 others of the crew of 

the Clan Mackenzie, for the loss of their property, clothing, and effects in

the sinking of the ship. Copies of these petitions were served upon the

claimant, but no warrant of arrest was issued, and no separate stipulation

was given to answer the interveners' demands.

James Joseph, another of the crew, also intervened, alleging that he had

 been seriously injured by the collision, and asking damages therefor.

Exceptions to these petitions were filed, denying the right to intervene

after the vessel had been discharged from arrest. These exceptions were

overruled, and the claimant ordered to answer. Answers were accordingly

filed.

Subsequently, and on April 5, 1890, the Oregon Short Line & Utah

 Northern Railway Company, charterer of the Oregon, filed a cross libel

against the Clan Mackenzie, charging that the collision occurred through

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the fault of the latter, in failing to display a proper anchor light, to keep a

 proper anchor watch, or to call the steamer's attention by shouting, ringing

the ship's bell, or showing a lantern or torch, as required by Rev. St. §

4234. A stipulation was given in the sum of $50,000 to answer this cross

libel, and the cases came on to a hearing in the district court upon libel and

cross libel.

The district court found the Oregon to have been in fault for excessive

speed, for want of a proper lookout and of an officer on deck, and for the

engligence of her pilot in mistaking the anchor light of the Clan

Mackenzie for that of Coffin Rock, and for not keeping further out in the

channel of the river. The district court also found the Clan Mackenzie to

have been in fault for the want of a proper lookout, for failure to ring her 

 bell, and for the omission to exhibit a torch. The case was adjudged to be

one of mutual fault, and a decree was entered dividing the damages. Theintervening petitions were held to have been properly filed, and one-half 

of their claims was ordered to be paid by the Oregon, and the other half 

out of the money found to be due to the Clan Mackenzie. 45 Fed. 62.

From this decree both parties appealed to the circuit court, which affirmed

the decree of the district court, and made the finding of facts printed in the

margin.2

C. E. S. Wood, for Simpson, master.

Artemas H. Holmes, John F. Dillon, and J. M. Wilson, for the Oregon.

William A. Maury, for interveners.

Mr. Justice BROWN, after stating the facts in the foregi ng language,

delivered the opinion of the court.

1 At the time of the collision in question, which occurred about 1 o'clock on the

morning of December 27, 1889, the ship Clan Mackenzie, an iron sailing vessel

of 2,500 tons burden, bound from Rio Janeiro to Portland in ballast, was lying

at anchor in five fathoms of water on the westerly or Oregon side of the

Columbia river, about 900 feet distant from and below a steamboat dock known

as 'Neer City,' about three-quarters of a mile below Goble's Point, and one mile

above Coffin Rock. She was anchored on the edge of the ship channel, which,

at that point, is nearly half a mile wide at low water, and well out of the usualtrack of ocean steamers plying up and down the river, and out of the range of 

Coffin Rock light. She was provided with an anchor watch, and was displaying

the proper statutory anchor light between 20 and 25 feet above the deck. In this

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condition she was run into and sunk by the steamship Oregon. The

circumstances above detailed raise a presumption of fault on the part of the

Oregon, and the burden of proof is upon her to exonerate herself from liability.

The Clarita and The Clara, 23 Wall. 1, 13; The Virginia Ehrman and The

Agnese, 97 U. S. 309, 315; 1 Pars. Shipp. 573. Has she succeeded in doing so?

An answer to this question requires the consideration both of her own

movements and of the alleged delinquencies on the part of the Clan Mackenzie.

2 1. The Oregon was an iron steamship, 300 feet in length, and of about 1,000

tons burden, and was navigated by the railway under a charter from her owner,

the Oregon Railway & Navigation Company, in a freight and passenger trade

 between Portland and San Francisco. She left Portland at about 9 o'clock in the

evening in question, with a cargo of freight and passengers, under charge of a

river pilot, drawing about 16 feet of water, and displaying her proper riding

lights. The weather was calm, and the sky somewhat cloudy, but the night wasdark and clear,—such a night as is most favorable to the discovery of lights.

The deck watch was composed of the river pilot in command (who was on the

 bridge just above the pilot house), a man at the wheel, and a lookout upon the

forecastle head. No officer and no other man connected with the vessel was on

deck from the time the watch was changed at 12 o'clock until the collision.

3 Considering the darkness of the night, her rate of speed, which was 15 miles an

hour past the land, the narrowness of the channel, and the probability of meeting other vessels, the greatest watchfulness was required, and we think that

 prudence demanded at least an additional lookout. The watch was the smallest

that would be tolerated under any circumstances, and, even were it sufficient

for navigation by daylight, it by no means follows that it was sufficient for 

running a river in a dark night. It is hardly possible that in a four-hour watch the

attention of the lookout should not be occasionally diverted from his immediate

duty. Yet the withdrawal of his eye from the course of the vessel even for the

fraction of a minute may occur at a moment when a light comes in sight, and, before this light can be accurately located and provided for, a collision may

take place. As was said by Mr. Justice Swayne in The Ariadne, 13 Wall. 475,

478: 'The duty of the lookout is of the highest importance. Upon nothing else

does the safety of those concerned so much depend. A moment's negligence on

his part may involve the loss of the vessel with all the property and the lives of 

all on board. The same consequences may result to the vessel with which his

shall collide. In the performance of his duty the law requires indefatigable care

and sleepless vigilance.'

4 Where, as in this case, the circumstances are such as to require more than

ordinary care, we think it not too much to require a lookout to be stationed on

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either bow. It was said in the case of The Ogdensburgh (Chamberlain v. Ward),

21 How. 548, 571, that ocean steamr § usually have two lookouts in addition to

the officer of the deck, and that no less precaution should be taken by first-class

steamers on the Lakes. In the case of The Germania, 3 Marit. Law Cases (O. S.)

269, a case of a steamer which had come into collision with a barque in the

English Channel in a dark night, the privy council were advised by the nautical

assessors, who assisted them, that it was the usual practice in king's ships tohave never less than two lookouts at the bowsprit, and their lordships

announced themselves as not satisfied with the sufficiency of the reason alleged

for having only one lookout in that case. While, in the case of The Colorado, 91

U. S. 692, the collision took place during a dense fog, it was said in the opinion

of the court that a watch consisting only of the mate, one wheelsman, and one

lookout, besides the engineer, would hardly be considered sufficient for a large

 propeller, even in a clear night.

5  Nor are we satisfied with the conduct of the master in leaving the pilot in sole

charge of the vessel. While the pilot, doubtless, supersedes the master, for the

time being, in the command and navigation of the ship, and his orders must be

obeyed in all matters connected with her navigation, the master is not wholly

absolved from his duties while the pilot is on board, and may advise with him,

and even displace him in case he is intoxicated or manifestly incompetent. He is

still in command of the vessel, except so far as her navigation is concerned, and

 bound to see that there is a sufficient watch on deck, and that the men areattentive to their duties. The Iona, L. R. 1 P. C. 426.

6 In The Batavier, 1 Spinks, 378, 383, it was said by Dr. Lushington: 'There are

many cases in which I should hold that, notwithstanding the pilot has charge, it

is the duty of the master to prevent accident, and not to abandon the vessel

entirely to the pilot; but that there are certain duties he has to discharge

(notwithstanding there is a pilot on board) for the benefit of the owners.' In an

official report made by a maritime commission in 1874, the Elder Brethren of Trinity House are said to have expressed the opinion 'that in well-conducted

ships the master does not regard the presence of a duly-licensed pilot in

compulsory pilot waters as freeing him from every obligation to attend to the

safety of the vessel; but that, while the master sees that his officers and crew

duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on

the navigation of the vesesl, and, when exceptional circumstances exist, not

only to urge upon the pilot to use every precaution, but to insist upon such being

taken.' Mars. Mar. Coll. 255.

7 These deficiencies in the watch, however, are rather evidences of negligence,

and illustrative of lax management in the navigation of the vessel, than distinct

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faults in themselves, and would not suffice to condemn the vessel in the

absence of evidence that they contributed to the collision. The question still

remains, what was the particular act or omission which brought about the

collision?

8 At Goble's Point, three-quarters of a mile above where the Clan Mackenzie lay,

there is a bend in the channel; but the anchor light of the ship, as well as CoffinRock light, might have been seen from the deck of the Oregon near the railway

ferry landing, a mile or more above Goble's Point. The pilot did in fact see one

of such lights, which he took to be Coffin Rock light. As the steamer neared

Goble's Point, however, both lights were shut in by the land; but a little before

reaching the point, if she had been in midchannel, both lights would have been

 plainly visible from her deck, though somewhat in line, that of the ship being a

little nearer the bank. But the Oregon, instead of being in midchannel, hugged

the shore in the bend above Goble's Point, and was on the southerly (more properly, the westerly) side of the channel as she came abreast of the point,

when the pilot saw a light, which he supposed to be Coffin Rock light,a nd

headed for it, giving the wheelsman the course N. W. by N., which was held to

the moment of the collision, although the general direction of the ship channel

from a point abreast of Goble's Point is N. N. W. (This finding is probably a

mistake for N. W. by N. 1/2 N.) The light which the pilot saw both above, at,

and below Goble's Point, and which he mistook for the Coffin Rock light, was

in fact the light of the Clan Mackenzie. But the Coffin Rock light was burning brightly all this time, and should have been visible from the deck of the

Oregon.

9 The pilot did not in fact discover the Clan Mackenzie until he was within 300

feet of her, when he and the lookout simultaneously made her out, and the

wheel was immediately put to port. The change of course, however, was too

late to avoid a collision, and the steamer struck the Clan Mackenzie in a

direction slightly diagonal to her keel, between the port cathead and the stem,and cut into her a distance of about 30 feet. It is stated by the district judge that

the pilot sought to excuse himself for seeing but one light by suggesting that the

two lights must have been so near in line that a mast of the Clan Mackenzie

intercepted the rays of the Coffin Rock light. But, as the outline of the shore

from Goble's Point to Coffin Rock was easily distinguishable from the deck of 

the Oregon, it was manifestly owing to the negligence or inefficiency of the

lookout that the two lights were not separated and distinguished, as the Oregon

rounded Goble's Point. Indeed, the finding of the circuit court is that both lightsmight have been seen at the railway ferry landing a mile above Goble's Point,

and from the course of the river at and below the landing it is impossible that

the two lights should not have been distinguished before the steamer reached

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the point; and even after that they could hardly have been so constantly in line

as not to be separated if the lookout had been attentive to his duty. In all

 probability, However, he was watching the Coffin Rock light, and gave no

thought to the possibility of there being another light between him and Coffin

Rock. From the fact that the Clan Mackenzie was anchored on the westerly

edge of the channel, and that, as soon as she was perceived, the order was given

to port, it would appear that the Oregon was considerably to the westward of her proper course, and that, instead of shaping her course outside of Coffin

Rock light, she was in reality heading directly for the light of the Clan

Mackenzie, which she mistook for the other. The pilot should not have been

taken unawares by the presence of the ship, as there is a distinct finding that it

was the custom of vessels being towed from Astoria to Portland to anchor for 

the whole or part of the night in the Columbia river, and that this fact should

have been known to the persons in charge of the Oregon, and they should have

kept a good lookout for such vessels. Add to this the further fact that thelookout of the Clan Mackenzie repeatedly hailed the steamer, while she was yet

a quarter of a mile away, and that the Oregon neither distinguished her light nor 

heard her hail, and the inattention or incompetency of the lookout becomes

even more clearly manifest. In short, there can be no doubt whatever that this

collision was attributable to the inefficiency of the pilot and lookout of the

Oregon.

10 2. The district judge was also of opinion that the Clan Mackenzie failed todischarge her whole obligation to the steamer, and should consequently share

the loss. In this opinion the circuit judge, with evident hesitation, concurred. As

we had occasion to remark in The City of New York, 147 U. S. 85, 13 Sup. Ct.

211, where one vessel, clearly shown to have been guilty of a fault, adequate in

itself to account for the collision, seeks to impugn the management of the other 

vessel, there is a presumption in favor of the latter, which can only be rebutted

 by clear proof of a contributing fault. This principle is peculiarly applicable to

the case of a vessel at n chor, since there is not only a presumption in her favor, by the fact of her being at anchor, but a presumption of fault on the part of the

other vessel, which shifts the burden of proof upon the latter.

11 So far as concerns the management of the Clan Mackenzie, the facts found are

that her anchor watch was charged by the master to keep a good lookout, and

ring the bell if the weather became thick or foggy; that the watchman saw the

light of the Oregon about three-quarters of a mile away, and her hull when at a

distance of about one-quarter of a mile, when he perceived that she was headingdirectly for the Clan Mackenzie, and commenced shouting, and continued to do

so until just before the collision, but did not ring the bell; that the Clan

Mackenzie was not provided with a torchlight, to be shown on the approach of 

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danger, and none was shown at the time the Oregon was approaching.

12 Upon these facts the Clan Mackenzie was found to have been in fault—First, in

not providing her anchor watch with a torchlight or flare-up, whereby her 

 presence might have been indicated to the approaching steamer; and, second,

 because her anchor watch did not avail himself of the means at hand for this

 purpose, to wit, the ship's bell. The International Code (Rev. St. § 4233), inforce at this time, provided (rule 10) that 'all vessels, whether steam-vessels or 

sail-vessels, when at anchor in roadsteads or fairways, shall, between sunset

and sunrise, exhibit, where it can best be seen, but at a height not exceeding

twenty feet above the hull, a white light in a globular lantern of eight inches in

diameter, and so constructed as to show a clear, uniform, and unbroken light,

visible all round the horizon, and at a distance of at least one mile.'

13 This rule was substantially, if not literally, complied with. The light was of theregulation size, and, if it were hung a little over 20 feet above the hull, the

difference was entirely immaterial, as it is found to have been seen by the pilot

of the Oregon, though mistaken for the Coffin Rock light.

14 The obligation to exhibit a torch is claimed to arise directly from Rev. St. §

4234, which provides that 'collectors, or other chief officers of the customs,

shall require all sail-vessels to be furnished with proper signal lights, and every

such vessel shall, on the approach of any steam-vessel during the night-time,

show a lighted torch upon that point or quarter to which such steam-vessel shall

 be approaching.' This section was incorporated into the Revised Statutes from

an act passed February 28, 1871 (16 Stat. 440), and is strictly no part of the

International Code, which was originally adopted in 1864. This act is entitled

'An act to provide for the better security of life on board vessels propelled in

whole or in part by steam, and for other purposes.' Its first section enacts 'that

no license, register, or enrollment shall be granted, or other papers issued, by

any collector or other chief officer of the customs, to any vessel propelled inwhole or in part by steam, until he shall have satisfactory evidence that all the

 provisions of this act have been fully complied with.' The act then proceeds to

lay down certain requirements, designed for the protection of life upon steam

vessels, and obviously intended to apply only to American vessels. The

seventieth section contains the provision in question, subsequently incorporated

into the Revised Statutes as section 4234. Indeed, the forty-first section of the

act expressly provides that it 'shall not apply to public vessels of the United

States, or to vessels of other countries.' Even if this section (Rev. St. § 4234)stood alone and unexplained by the other provisions of the act of which it was a

 part, it would seem to apply only to American vessels, since congress could

hardly have intended to make it the duty of collectors to require foreign sail

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vessels to be furnished with proper signal lights, even if it had the power to do

so.

15 But, even admitting that section 423 was intended to cover foreign vessels, we

think it has no application to vessels at anchor, but was designed to supply an

obvious deficiency in the International Code, with respect to vessels under way.

By rule 8 of the original Code of 1864, sailing vessels under way were requiredto carry colored lights visible at a distance of two miles, but so inclosed by

inboard screens that they were wholly invisible to vessels coming up astern or 

approaching from either side, unless such approach were from a direction not

more than two points abaft the beam. In other words, one or the other of such

colored lights was visible over an arc of the horizon of 20 points of the

compass; but no provision was made for the exhibition of a light to a steamer 

coming up within the unilluminated arc of 12 points; and, in a dark night, of 

course there was great danger of collision, since the Code provided that 'noother' lights than those mentioned in its rules should be carried. Even if a

steamer approached from ahead, the colored lights were frequently so dim as to

escape observation, and the exhibition of a torch was a very proper additional

 precaution.

16  No such argument, however, applies to the case of vessels at anchor, which

were required by rule 10 (article 8 of the Revised Code of 1885) to exhibit a

large white light so constructed as to be visible all around the horizon, and at adistance of at least a mile. If a proper lookout be kept upon the approaching

steamer, this is an adequate provision for a clear night, and the additional

requirement of exhibiting a torch might impose upon the vessel anchored in a

stream where steamers are constantly passing and repassing the duty of keeping

a torch burning the entire night. Suppose, for instance, the vessel were

anchored in New York Bay, or in the lower part of the Hudson river, in

ordinary weather there probably would not be a moment during the whole night

when a steamer might not be said to be approaching her, within the meaning of the section; and, if she were required to exhibit a torch to every such steamer,

she would be required to keep one burning practically all the time. That would

not only be wholly unnecessary, but liable to lead to great confusion and

annoyance to passing steamers. The very fact that the section applies only to

sailing vessels indicates that it refers to sailing vessels under way, since there is

 just as much reason for requiring a steamer to exhibit a torchlight at anchor as a

sailing vessel, as the light displayed by both is the same. Indeed, it is at least

open to question whether this provision, so far as it applies to the high seas, wasnot repealed by article 11 of the act of March, 1885 (23 Stat. 440), which

requires that 'a ship which is being overtaken by another shall show from her 

stern to such last-mentioned ship a white light or flare-up light.' The failure of 

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the International Code to make some provision for notice to vessels coming up

astern of another was so manifestly a casus omissus that, even before the

adoption of the Revised Code, it was held that the leading vessel was bound to

exhibit a light astern. This position was treated as a 'special circumstance,'

requiring the use of extraordinary precautions. The John Fenwick, L. R. 3 Adm.

& Ecc. 500; The Anglo-Indian, 3 Asp. 1; The Philotaxe, Id. 512.

17 It is insisted, however, that, irrespective of the statute, the Clan Mackenzie was

 bound to make use of every precaution which the exigencies of the case called

for to avert a collision; that she had no right to rely upon her statutory light, but

was bound either to exhibit a torch, ring a bell, or in some other equally

efficient manner call the steamer's attention to the fact of her presence in the

river. Undoubtedly, where the circumstances of the case are such as to demand

unusual care, such care should be exercised. Indeed, there is a special provision

in rule 24 that, 'in construing and obeying these rules, due regard must be had toall dangers of navigation, and to any special circumstances whc h may exist in

any particular case, rendering a departure from them necessary in order to avoid

immediate danger.' The Code, however, is supposed to make provision for all

ordinary cases.

18 It originated in the English merchant shipping amendment act of 1862, the

twenty-fifth section of which provided for the adoption by order in council of 

certain rules and regulations for preventing collisions at sea; requiring theadoption of certain lights, fog signals, and steering and sailing rules adapted to

almost every case. These regulations were adopted in totidem verbis by the act

of congress of April 29, 1864 (Rev. St. § 4233), and by all the leading maritime

nations of the world, and in the case of The Scotia, 14 Wall. 170, were held by

this court to have become the general law of the sea, and obligatory upon all

nations which had given their assent to them. In the subsequent case of The

Belgenland, 114 U. S. 355, 370, 5 Sup. Ct. 860, they were said to be binding

upon foreign as well as domestic ships, unless the contrary were made toappear. In 1880 a new system, not differing radically from the former one, was

adopted in England, and by the act of March 3, 1885 (23 Stat. 438), became the

law in this country so far as concerned vessels navigating the high seas. The

object of this Code was to establish a uniform system of rules and regulations,

which should be obligatory throughout the world, taking the place of the

various and somewhat conflicting usages which had theretofore obtained

among maritime nations. As before stated, they are regarded as sufficient

 protection for a vessel under ordinary circumstances; and one vessel meetinganother, whether of the same or different nationality, has a right to assume that

 both are governed by the same laws, and each may regulate her own conduct

accordingly. Exceptions to these rules, though provided for by rule 24, should

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 be admitted with great caution, and only when imperatively required by the

special circumstances of the case. It follows that, under all ordinary

circumstances, a vessel discharges her full duty and obligation to another by a

faithful and literal observance of these rules. The power to superadd to them

other requirements involves the power to determine what shall be superadded,

and in this particular there is room for a great and embarrassing diversity of 

opinion. Thus, one court might hold that, in addition to displaying theregulation light, a vessel at anchor should swing a torch; another, that she

should ring a bell; another, that she should blow a horn, beat a drum, or fire a

cannon; and the result would be that a lookout would never know when he had

 performed his full duty to an approaching vessel. In the answer in this case it is

averred that the lookout on the ship 'did nothing to attract the attention of those

on board said steamer, either by shouting, ringing said bell, or swinging a

lantern or a torch, or otherwise; that if said lookout had shouted, or had rung

said bell, or had swung a lantern or torch upon the approach of said steamer,the said night being still and dark as aforesaid, said collision would have been

avoided.' The proof showing, however, that the lookout did, in fact, hail the

steamer, the respondent is forced to abandon this position, and claim that he

should have rung his bell or swung his lantern or torch.

19 If courts were at liberty to add to the requirements of the statute, it would

always be claimed that the signal added was not the proper signal that should

have been used. Undoubtedly, if there be fog or thick weather, a vessel atanchor is bound by rule 15 to ring a bell; but in an ordinary clear night, with no

immediate danger impending, we think a proper anchor light supplies every

needful precaution. And while in The Merchant Prince, 10 Prob. Div. 139, it

was held that the exhibition of a flare-up light was not forbidden by article 2 of 

the Revised Code, requiring that certain lights, and no others, should be carried,

yet we are aware of no case holdingt hat a vessel at anchor in a clear night is

 bound to do more than display her anchor light until danger of collision is

imminent. It is true that article 24 of the Revised Code provides that nothingshall exonerate a ship from the consequences of the neglect of any precaution

which may be required by the ordinary practices of seamen, or by the special

circumstances of the case. But in this case there is a distinct finding that it is

not customary when a ship is at anchor in a harbor, river, or channel, as in this

case, with her anchor light burning brightly, and the night is clear and without

fog, to show a torch or flash light or ring a bell on the approach of a steamer.

Under such circumstances, the Clan Mackenzie cannot be charged with the

neglect of any custom or 'ordinary practice' to exhibit a torch or ring a bell.

20 In measuring her duty under the circumstances of this case, it must be borne in

mind that her lookout had no reason whatever to apprehend danger until the

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Oregon had rounded Goble's Point, and taken her course for Coffin Rock. She

was then about three-quarters of a mile distant, and, at her rate of speed of 15

miles an hour (a mile in four minutes), would cover this distance in three

minutes. Even then he had a right to assume that she would take the usual

course down the center of the channel, would see his light, and give it a proper 

 berth. He certainly was not bound to presume that she would be guilty of the

gross and almost incomprehensible negligence of turning from her proper course, and running directly down upon him; and until it became manifest that

she had not observed his light, he was not called upon to act. It was then too

late to light a torch, if he had had one at hand, or perhaps even to ring a bell;

and in view of the finding of the circuit court that, if a torch or flash light is not

already prepared and at hand and ready for use, it would take five minutes to

obtain one from the place where they are usually kept and lighted, we are

unable to understand how the court could have held the Clan Mackenzie liable

for the nonexhibition of a torch, unless upon the theory that it was her duty tokeep one lighted all the time. As soon as the lookout became satisfied that the

Oregon either had not seen or had mistaken his light, he did what in the

excitement of the moment seemed to him best. He hailed her, and continued to

shout until just before the collision. It was a case of action in extremis, and,

while it is possible that a bell might have called the attention of the approaching

steamer, it is by no means certain that it would have done so; and, whether the

lookout acted wisely or not, he evidently acted upon his best judgment, and the

 judgment of a competent sailor in extremis cannot be impugned. Indeed, we arenot prepared to say that a hail could not have been heard as far as a bell; and,

considering the character of the lookout that was kept on the Oregon, it is very

doubtful whether a bell would have been heard or regarded. As we have already

observed, it is not sufficient for the Oregon to cast a doubt upon the

management of the Clan Mackenzie. In view of the clearness of her own fault,

it is not unreasonable to require that she should make the fault of the other 

equally clear. This she has fallen far short of doing.

21 It is also argued with great insistence that the anchor light of the Clan

Mackenzie was lowered when the Oregon first came in sight, and that such

fault was the primary and sole cause of the collision. We have examined the

testimony upon that point, which is slight, and are therefore of the opinion that

the court was amply justified in refusing to make this finding.

22 Although this collision occurred in 1889, we have assumed that the original

Code of 1864 applied to it, in view of the exception in section 2 of the RevisedCode, 'as to the navigation of such vessels within the harbors, lakes, and inland

waters of the United States.' The question is immaterial, however, since the

 provisions of theC odes of 1864 and 1885 are substantially identical as to the

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requirements involved in this case, and we do not, therefore, find it necessary to

express a decided opinion upon the point. Our conclusion is that the Oregon

was solely in fault.

23 3. The courts below were also in error in entertaining jurisdiction of the

intervening petitions. These petitions were filed after a stipulation had been

given for the release of the Oregon, upon the original libel of Simpson, torecover for the loss of the Clan Mackenzie. No new warrant of arrest was

issued upon these petitions, but the claimant, the Oregon Short Line & Utah

 Northern Railway Company, was ordered to answer them; and, in the final

decree, damages were awarded to the intervening petitioners, and the claimant

ordered to pay into court the sum of $35,531.19, to be applied, first, to the

 payment of the interveners, and then to the payment of the original libel. We

are unable to understand upon what theory this apportionment was made.

24 The stipulation given for the release of the Oregon was as follows:

25 'Whereas, a libel was filed in this court on December 31, 1889, by John

Simpson against the steamer Oregon, her tackle, apparel, and furniture, for the

reasons and causes in said libel mentioned, and praying that the same may be

condemned and sold to answer the prayer of said libelant, and a claim has been

filed by the Oregon Short Line & Utah Northern Ry. Co., and the said claimant

and W. S. Ladd and Van B. De Lashmutt, sureties, the parties hereto, hereby

consenting and agreeing that, in case of default or contumacy on the part of the

claimant or its sureties, execution may issue against their goods, chattels, and

lands for the sum of two hundred and sixty thousand dollars: Now, therefore, it

is hereby stipulated and agreed, for the benefit of whom it may concern, that

the stipulators undersigned shall be and are bound in the sum of two hundred

and sixty thousand dollars, conditioned that the claimant above named shall

abide by and pay the money awarded by the final decree rendered in the cause

 by this court, or, in case of appeal, by the appellate court.'

26 Here is a simple agreement to become responsible for the final decree rendered

in the cause in which the stipulation is given, and the words 'for the benefit of 

whom it may concern' refer, undoubtedly, to the owners of the Clan Mackenzie,

in whose behalf Simpson, the master, had filed the libel. We know of no

authority which permits the liability of sureties upon such a stipulation to be

enlarged by the inclusion of claims other than the ones which the stipulators

agree to pay. To such a claim the surety may well reply, 'Non in haec foedera

veni.' The stipulators may be so well satisfied that the claimant has a defense to

the original libel as to be willing to take upon themselves the contingency of a

decree requiring its payment, but they may neither know, nor be able to

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conjecture, what other demands may be made against the property.

27 In the case of The Palmyra, 12 Wheat. 1, in which this court held that it had

 power to reinstate a prize cause after dismissal, the general liability of sureties

upon a stipulation is thus stated by Mr. Justice Story: 'Whenever a stipulation is

taken in an admiralty suit, for property subjected to legal process and

condemnation, the stipulation is deemed a mere substitute for the thing itself,and the stipulators liable to the exercise of all those authorities on the part of 

the court which it could properly exercise if the thing itself were still in its

custody. This is the known course of the admiralty. It is quite a different

question whether the court will, in particular cases, exercise its authority where

sureties on the stipulation may be affected injuriously. That is a question

addressed to its sound discretion.'

28 In Newell v. Norton, 3 Wall. 257, the libelant originally proceeded against thevessel, the master and owner, and the pilot for a collision. The libel was

subsequently amended, by leave of the court, by dismissn g it as to the pilot,

and sustaining it as against the vessel and her master or owner. This amendment

was held to have been properly granted, inasmuch as it appeared that the

liability of the sureties was neither increased nor diminished by it. And in this

connection the court quoted the familiar doctrine that 'every person bailing such

 property is considered as holding it subject to all legal dispositions of the court.'

There was no intimation, however, that the liability of the sureties could beincreased by the insertion of additional claims.

29 On the other hand, in the case of The North Carolina, 15 Pet. 40, appealed from

the court of appeals of the territory of Florida, a libel for salvage was filed

originally against 72 bales of cotton. One Houseman appeared as claimant, and

gave a stipulation for its agreed value. The superior court of the territory

decreed restitution of the 72 bales. Houseman appealed to the court of appeals

of the territory, where the libelant proceeded for 122 bales taken in salvage,charged that it was forcibly and wrongfully taken, and claimed damages for the

marine tort. The court of appeals sustained this claim for the whole amount,

and made a personal decree against Houseman beyond the sum for which the

stipulation was taken. This was held to be error, the court saying that, in so far 

as the 72 bales were concerned, either party was authorized to make

amendments, or introduce new evidence, in order to support his title in the

appellate court. But the libelant could not introduce a new subject of 

controversy, by bringing into the case the additional 50 bales, or make a decreeagainst the claimant in personam.

30  Nearer in point, and almost exactly analogous in principle, is the case of The

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 Nied Elwin, 1 Dod. 50. This vessel, sailing under Danish colors, was captured

 by a privateer, and subsequently restored, by consent, to the owners. A claim

was interposed for the cargo by a firm in Copenhagen, to whom the judge

restored four-sevenths, and ordered further proof of the remainder. Bail was

given to the captor in double the appraised value of the latter, and subsequently

the judge pronounced the goods to be Danish property, and apparently ordered

it to be returned to the owners. The king's advocate then moved for thecondemnation of the property to the crown in consequence of hostilities since

declared between England and Denmark, and also for a monition against the

 bail to answer the adjudication.

31 He argued that the bail bond should be considered as a substitute for the thing

itself; that it was not confined to the captor, to whom it was given, but was to

answer all questions relative to the property which might arise before the

ultimate adjudication of the cause; that the crown must be considered asidentified with the captor; and that in case of property condemned to the crown

instead of the captor, by whom the proceedings were originally instituted, the

responsibility of the bail was indisputable.

32 Sir William Scott (afterwards Lord Stowell), in delivering judgment, said that

the question was whether the persons who had given bail were subject to the

demands of the crown to account for the value of the goods. At the time the

 property was delivered on bail, the question was whether it belonged tosubjects of Denmark. If so, the claimant would be entitled to restitution. The

court announced that it could not entirely concede to the position that these

 bonds were mere personal securities given to the individual captors, but they

were regarded as pledges or substitutes for the thing itself, 'in all points fairly in

adjudication before the court.' 'But,' said he, 'the question still recurs, has the

crown the right to enforce payment from these parties in the event, which has

since occurred, of Danish hostilities? I am of opinion that it has no such right. *

* * The court does, indeed, upon the intervention of hostilities, accept the old proceedings, and upon them pronounce for the interest of the crown; but it does

so merely for the purpoe of saving time and expense, and not with any view of 

fixing a responsibility upon those who have given bail to answer a very

different question. If the court were to accede to the prayer of the crown upon

this occasion, the effect would be monstrous. It would extinguish altogether the

 practice of delivering property upon bail,—a mode so much encouraged by the

court and the legislature. No British merchant would become security for 

foreign claimants in any case if he should be considered responsible to theextent of such a possible contingence as that of a subsequent intervention of 

hostilities.' The gist of this opinion is that, if the change in the case has been

merely that of substituting the crown for the original captors, the bail would be

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responsible, but that the subsequent intervention of hostilities so far changed

the original cause of action as to exonerate the bail. In other words, the contract

of a surety, whether at common law or in admiralty, is one strictissimi juris, and

cannot be changed by implication. While the bail is intended as a substitute for 

the property itself, it is only such, as stated by Sir William Scott, 'in all points

fairly in adjudication before the court.'

33 In the case of The Saracen, 4 Notes Cas. 498, 507, 2 W. Rob. Adm. 451, 457, a

contest arose between different parties injured by a collision over the proceeds

of the sale of the libeled vessel. In delivering his opinion, with respect to certain

questions of practice which arose in the case, Dr. Lushington observed: 'In

concluding my remarks upon this part of the case, I may here observe that, if 

 bail had been given in the present instance, such bail, I apprehend, would have

 been responsible only to the plaintiffs in the action which they had bailed. It

could not, I conceive, for a moment be contended that the claimants bringingthe subsequent action would have any title to recover against such bail, or to

 participate in any fund which they might bring into the registry of the court in

discharge of their liability as bail.' A similar observation was made by the same

eminent judge in the subsequent case of The Clara, Swab. 1, 4. See, also, The

William Hutt, Lush. 25.

34 The case of The T. W. Snook, 51 Fed. 244, is exactly in point. In this case a

vessel was arrested for damages done to another vessel by a collision, and wasreleased upon bond. Afterwards an insurance company intervened, claiming

that the cargo of the libelant vessel had been insured by the company, and had

 been totally destroyed by the collision. A decree was rendered condemning the

respondent vessel. Held, that the insurance company should not be allowed to

 be let in to share in the decree to the extent of what might remain of the penalty

of the bond after satisfying the decree in regard to the damage to the other 

vessel, since the bond was give only to satisfy the cause of action sued for in

the original libel. The case of the Oregon was cited, but Judge Blodgett held itto be inapplicable to the facts of that case. We find it impossible to distinguish

this case from the one under consideration. It was quoted with approval at the

last term of this court in the case of The Haytian Republic, 154 U. S. 118, 127,

14 Sup. Ct. 992, in which a vessel libeled for smuggling, and discharged upon

giving the bond required by law, was held to be subject to a libel in another 

district for another offense alleged to have been committed prior to the offense

charged in the first libel.

35 The district judge, in his opinion upon exceptions to certain of these petitions,

quotes general admiralty rule 34 as authority for the proposition that, if third

 parties intervene in any admiralty case, the other party or parties in the suit may

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 be required, by order of the court, to make due answer. This is entirely true, but

the rule has reference only to those cases where the vessel is still in custody, or 

where she has been sold and the proceeds of sale paid into court. If still in

custody when intervening petitions ar filed, the vessel cannot be released until a

stipulation is given to answer all the libels on file. But if, after the stipulation is

given, and the vessel is discharged from custody, other libels are filed, a new

warrant of arrest must be issued, and the vessel again taken into custody.

36 We think the court must have confounded a stipulation given to answer a

 particular libel with a stipulation for the appraised value of the vessel, under the

limited liability act, which, by general admiralty rule 54, is given for payment

of such value into court whenever the same shall be ordered, and in such case

the court issues a monition against all persons claiming damages against the

vessel to appear and make due proof of their respective claims. And by rule 55,

after such claims are proven and reported, 'the moneys paid, or secured to be paid, into court as aforesaid, or the proceeds of said ship or vessel and freight, *

* * shall be divided pro rata amongst the several claimants, in proportion to the

amount of their respective claims.' By rule 57, if the ship has been already

libeled and sold, the proceeds shall represent the same for the purpose of these

rules. In all the cases cited, in which it has been said that the stipulation is a

substitute for the thing itself, the remark has been made either with reference to

the particular suit in which the stipulation is given, or with reference to a

stipulation for the appraised value of the vessel, where the stipulation stands assecurity for any claim which may be filed against her up to the amount of the

stipulation. Thus in The Palmyra, 12 Wheat. 1, it was held that the court

 possessed the power to reinstate any case dismissed by mistake upon the

ground that the stipulators were liable to the exercise of all those authorities

upon the part of the court which it could properly exercise if the thing itself 

were still in its custody. See, also, The Ann Caroline, 2 Wall. 538; The Wanata,

95 U. S. 600, 611; The William H. Webb, 14 Wall. 406; U. S. v. Ames, 99 U.

S. 35; The Union, 4 Blatchf. 90, Fed. Cas. No. 14,346.

37 The injustice of holding the sureties in this particular case liable to the

interveners is the more manifest from the decree that was entered requiring

their claims to be paid before that of the principal libelant. If it so happened that

the sureties were unable to respond to the full amount of their stipulation, or to

an amount sufficient to pay all the claims, the result would be that the

interveners, who had taken no steps to arrest the vessel, and were admitted

under the original libel of Simpson, might be able to appropriate to themselvesthe whole or the greater part of the fund, and leave the original libelant wholly

unprovided for. A proposition which would bring about this result surely

cannot be a sound one.

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On the 3d of June, 1895, the chief justice announced the following order: It is

ordered by the conrt that the decree heretofore entered herein be amended by

adding thereto the following words: 'Without prejudice, however, to the right of 

the court below, or of the district court, in its discretion, to treat the intervening

 petitions as independent libels, and to issue process thereon against the steamer 

Oregon, her owners or charterers, or to take such other proceedings therein as

 justice may require.'

Finding of Facts.

First. That the Clan Mackenzie is a British vessel, of twenty-five hundred tons

 burden, built of iron, two hundred and fifty-nine feet in length, thirty-eight feet

 beam, and twenty-three feet in the hold, and was early in the forenoon of 

December 26, 1889, at Astoria, Or., bound for Portland from Rio Janeiro, in

 ballast, and in two of the steamboat Ocklahama, of which one Henry Empkins

was master and pilot.

Second That about eight o'clock in the evening of said day said vessel came to

anchor on the Oregon side of the Columbia river in five fathoms of water, at

three feet flood tide, and about nine hundred feet distant from and a little below

a dock and woodyard for steamboats called 'Neer City'; also, about three-

fourths of a mile below Goble's Point and a mile above Coffin Rock.

Third. That immediately below said Coffin Rock, and a short distance inside of 

it, on the face of a wooded promontory, and at a height of about thirty feet from

the water, there is and was at said time maintained a government light,

described as a tubular-lens lantern of a one hundred candle power, with a

radiating power of four miles, and easily visible on a dark, clear night from

three to four miles.

Fourth. That said steamboat Ocklahama was owned at said date by the Oregon

Railway & Navigation Company, but was in possession and control of said

Oregon Short Line & Utah Northern Railway Company, under a lease from said

Oregon Railway & Navigation Company, and that said Henry Empkins, asmaster and pilot, was the agent of the said Oregon Short Line & Utah Northern

Railway Company.

38 The decree of the circuit court must therefore be reversed, with costs to the

original libelants as against the steamship Oregon, and with costs to the Oregon

as against the interveners, and the case remanded to the circuit court for further 

 proceedings in conformity with this opinion.

1

2

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Fifth. That said pilot anchored the Clan Mackenzie on the edge of the ship

channel, which at that point is nearly half a mile wide at the mean of the lowest

low waters, and well out of the usual track of the ocean steamers that ply

 between Portland and San Francisco, and also back and out of the range of said

Coffin Rock light.

Sixth. That, under the direction of said pilot, there was placed in the forerigging of said Clan Mackenzie on the starboard side, midway between the

foremast and the shrouds, between twenty and twenty-five feet above the deck,

and thirty-five to forty feet above the water, an anchor light, which was a white

light in a copper lantern with a globular corrugated lens over eight inches in

diameter, and that the material used in it was equal to the best coal oil, and it

would burn eight hours without trimming; that it was easily visible on a dark,

clear night a mile away, and was kept in place and burning brightly from ten

o'clock p. m. of said December 26th up to and at the moment of the collisionhereinafter mentioned.

Seventh. That said pilot then proceeded with said Ocklahama to the dock of the

woodyard at said Neer City, where said steamboat was tied up for the night.

Eighth. That said Clan Mackenzie was well and properly anchored, and that the

light hung in the rigging thereof was properly hung, and was in all respects a

good and sufficient anchor light.

 Ninth. That about nine o'clock in the evening of said December 26, 1889, the

Oregon, an iron steamship of about one thousand tons burden and three

hundred feet in length, and being operated by said Oregon Short Line & Utah

 Northern Railway Company under the lease from the Oregon Railway &

 Navigation Company, as owner thereof, left Portland, Or., for San Francisco,

Cal., with a cargo of freight and passengers, under the charge of a pilot, and

drawing between sixteen and seventeen feet of water, and having a proper mast

light and said lights burning.

Tenth. That the night of said December 26, 1889, was dark and clear, the

weather calm, with some clouds in the sky. A few stars were visible, and,

according to the calendar, the moon set at 9.42 p. m.

Eleventh. That during the passage of the Oregon down the Columbia river, and

up to the time of the collision, the pilot thereof was on the center of the bridge

 just abaft and above the pilot house, and there was a man at the wheel and

another forward on the forecastle head acting as a lookout. The steersman and

lookout came on duty at twelve o'clock, and besides these no person connected

with the vessel was on duty on deck from that time to the collision.

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Twelfth. That near one o'clock, and a mile or more above Goble's Point, and

opposite the railway ferry landing, the anchor light of the Clan Mackenzie and

the Coffin Rock light might both have been seen from the ship's channel in the

Columbia river, and there the pilot of the Org on saw one light which he took 

for said Coffin Rock light.

Thirteenth. That from this point the Oregon followed the bend of the river tothe westward for nearly a half mile, until both lights were shut out by Goble's

Point, and in the course of the next half mile she came back to the northward,

so that by the time she was abreast of the foot of Sand Island, and just above

Goble's Point, if she had been in mid-channel, both lights would have been

 plainly visible from her deck, though somewhat in line, the light of the Clan

Mackenzie being the further in shore; but the Oregon, instead of being in mid-

channel, hugged the shore in the bend above Goble's Point, and came abreast of 

said point on the south side of the channel, when the pilot saw a light, which hesupposed to be Coffin Rock light, and headed for it, giving the steersman the

course northwest by north, which was held to the moment of the collision,

while the general

direction of the ship channel from abreast of said Goble's Point to below Coffin

Rock light is north-northwest.

Fourteenth. That the light which the pilot saw both above, at, and below Goble's

Point, and which he mistook for the Coffin Rock light, was in fact the anchor light of the Clan Mackenzie, but that the Coffin Rock light was burning

 brightly during all said times, and should have been visible from the deck of 

the Oregon.

Fifteenth. That during said time, and up to the moment of the collision, the

Oregon was going through the water at the rate of twelve miles an hour, and

about fifteen miles past the land.

Sixteenth. That the Oregon arrived within three hundred feet of the Clan

Mackenzie when the pilot and lookout of the Oregon simultaneously

discovered the Clan Mackenzie, and the helm of the Oregon was immediately

 put to port.

Seventeenth. That the course of the Oregon was not changed in time to avoid a

collision, and she struck the Clan Mackenzie in a direction slightly diagonal to

her keel, between the port cathead and the stem, and cut into her for a distance

of about thirty feet.

Eighteenth. That from the deck of the Oregon the outline of the shore from

Goble's Point to Coffin Rock was easily distinguishable, and the light of the

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Clan Mackenzie should have been seen and distinguished for at least a quarter 

of a mile.

 Nineteenth. That it was and is the custom of vessels being towed from Astoria

to Portland to anchor for the whole or part of a night in the Columbia river,

which fact should have been known to the persons in charge of the Oregon, and

they should have kept a good lookout for such vessels in order to avoid acollision.

Twentieth. That said collision was caused primarily by the fault of the Oregon,

in that she was being run at too high a rate of speed; that she did not have a

 proper lookout on the bow; that she should have had at least one officer on

deck to oversee said lookout; and that her pilot was negligent or incompetent in

mistaking the anchor light of the Clan Mackenzie for that of Coffin Rock light,

and in not keeping well out into the channel of the river before rounding

Goble's Point, so as to bring the Coffin Rock light plainly in view before giving

the steersman the course, and also in standing continuously at the middle of the

 bridge over and above the light in the pilot house, instead of moving back and

forth thereon.

Twenty-first. That there was a watch on board the Clan Mackenzie, who had

instructions from the master to keep a good lookout and ring the bell if the

weather became thick or foggy, and that said watch saw the light of the Oregon

when about three-fourths of a mile away, and her hull when at a distance of about one-fourth of a mile, when he perceived that she was

heading directly for the Clan Mackenzie, and commenced shouting and

continued to do so until just before the collision, but he did not ring the bell.

The weather was not thick or foggy.

Twenty-second. That said Clan Mackenzie was not provided with a torchlight to

 be shown on the approach of danger, and none was shown at the time theOregon was approaching.

I further find from the evidence now introduced in connection with that

introduced in the district court that it is not customary when a ship is at anchor 

in a harbor, river, or channel, as in this case, with her anchor light burning

 brightly, and the night is clear and without fog, to show a torch or a flash light

or ring a bell on the approach of a steamer, and that, if a torch or flash light is

not already prepared and at hand and ready for use, it would take five minutes

to obtain one from the place where they are usually kept and light it.

Twenty-third. That said Clan Mackenzie, being a foreign vessel, was not

required, under section forty-two hundred and thirty-four of the Revised

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Statutes, to burn a torch on the approach of the Oregon; and it was not the

custom on the Columbia river to do so, or to ring a bell in a clear night under 

like circumstances, but the liability to a collision would have been greatly

diminished had either been done in time.